I’ve been doing a lot of research since two of our members were assaulted and falsely arrested by DPS troopers at the Capitol a few weeks ago. Besides the law that we already are aware wasn’t broken with respect to having BP pistols, I found some other interesting tidbits of law that I think support our assertion that DPS is overstepping its bounds.
The State Preservation Board is an agency of the state. Among its responsibilities is to “adopt rules concerning the buildings, their contents, and their grounds.” Additionally, “the board may allocate specific duties and responsibilities to any other state agency, if the other agency agrees to perform the duty or accept the responsibility.”
Section 443.018 of the Government Code allows the Board to regulate visitors and vendors to the capitol under certain circumstances.
Sec. 443.018. REGULATION OF VISITORS AND VENDORS. (a) The board shall adopt rules that regulate the actions of visitors in the Capitol or on the grounds of the Capitol.
(b) The rules adopted under Subsection (a) shall include rules that:
(1) prohibit persons from attaching signs, banners, or other displays to a part of the Capitol or to a structure, including a fence, on the grounds of the Capitol except as approved by the board;
(2) prohibit a visitor from placing furniture in the Capitol or on the grounds of the Capitol for a period that exceeds 24 hours except as approved by the board;
(3) prohibit the setting up or placement of camping equipment, shelter, or related materials in the Capitol or on the grounds of the Capitol except as approved by the board;
(4) prohibit actions that block ingress and egress:
(A) into the Capitol building; or
(B) rooms or hallways within the Capitol building, except as approved by the board;
(5) prohibit actions that pose a risk to safety;
(6) provide that members of the public must leave the Capitol when the building is closed to the public;
(7) provide that all pets except Seeing Eye dogs are not permitted in the Capitol, and shall be restrained at all times on a leash or similar device in the immediate control of the owner while on the grounds of the Capitol, except as approved by the board;
(8) prohibit the use of skateboards, rollerblades, and rollerskates in the Capitol or on the grounds of the Capitol; and
(9) prohibit a vendor or commercial enterprise from operating in the Capitol or on the grounds of the Capitol unless the vendor or commercial enterprise is authorized to do so by the board.
(c) A person commits an offense if the person violates a rule of the board adopted under Subsection (a).
(d) An offense under this section is a Class C misdemeanor.
(e) This section may not be applied in a manner that violates a person’s rights under the Texas Constitution or the First Amendment to the United States Constitution, including the right of persons peaceably to assemble.
(f) The board shall send proposed rules under this section to the attorney general for review and comment before the board adopts the rules.
DPS claims that they have the authority under law to create rules with an eye towards safety. However, these rules “may not be applied in a manner that violates a person’s rights under the Texas Constitution.” Our Texas Constitution recognizes the rights of citizens to keep and bear arms under Section 23 of the Bill of Rights.
Sec. 23. RIGHT TO KEEP AND BEAR ARMS. Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.
Texas Government Code Section 411.062 gives DPS “primary responsibility for law enforcement and security services on the Capitol Complex.” It also give DPS authority “to adopt rules relating to security of persons and access to and protection of the grounds, public buildings, and property of the state within the Capitol Complex, except that public use of the capitol, the capitol extension, the capitol grounds, and the General Land Office building shall be governed by the State Preservation Board.”
DPS may enforce the rules of the State Preservation Board that are published in the Texas Administrative Code. However, these rules, again, must not violate the constitutional rights of Texans and visitors.
If you look back at Section 23 of the Texas Constitution, only the LEGISLATURE has the authority to “regulate the wearing of arms” and then only “with an view to prevent crime.” The Constitution vests no authority in DPS or the Texas Preservation Board to adopt rules that govern the wearing the arms.
DPS likes to point to the Administrative Code Rule 3.146 that states firearms are prohibited on Capitol grounds. While I believe this rule is unconstitutional as it wasn’t a law passed by the legislature to “regulate the wearing of arms” the rule still only applies to firearms as defined in Texas Penal Code Section 46.01.
(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
Never mind that the Rule, as written, misquotes the law. 3.146 addresses “prohibited weapons as defined in the Texas Penal Code, §46.06.” The problem is that Texas Penal Code, §46.06 doesn’t address prohibited weapons. That is §46.05. §46.06 addresses the “unlawful transfer of certain weapons.”
The problem that DPS has is one of a constitutional nature, both the Texas and US constitutions. 3.146 only regulates “firearms, explosive weapons, illegal knives, clubs, and knuckles, as defined in the Texas Penal Code, §46.01, and prohibited weapons as defined in the Texas Penal Code, §46.06[sic]” on state grounds.
If you notice, “deadly weapons” are not expressly mentioned. It is not inferred or implied either. Under the Texas Penal Code, a deadly weapons is defined as “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury”…or…”anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”
Knowing the statist mentality of the Capitol DPS leadership, I have no doubt that they will try to get the rules changed so that these officers are the only ones armed. Patrick Henry warned about this mentality in 1775 as King George I began confiscating powder kegs and arms. He posited the following observation on why government doesn’t want us carrying arms: “They tell us that we are weak — unable to cope with so formidable an adversary. But when shall we be stronger? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Three million people, armed in the holy cause of liberty, are invincible by any force which our enemy can send against us.”
DPS and other law enforcement entities that continuously call for the systematic disarming of the populous claim to do so in the interests of safety. What they fail to realize is that where there are firearms, there IS safety. Thomas Jefferson is credited as saying, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.”
A few weeks ago, over 1200 armed individuals converged on the front lawn of the Alamo in San Antonio. Nearly all weapons were loaded (though none were chambered). If guns endanger safety, no place in the country would have been as dangerous as downtown San Antonio that beautiful Saturday in October. However, no one was threatened, injured or killed. No one was robbed, raped, or beaten.
The Supreme Court of the United States has ruled on numerous occasions that the right to keep and bear arms is an individual right, not a collective one. We have seen throughout US and world history what happens to an unarmed society. When the government is the only entity with arms, its dictates cannot be opposed. Similarly, a disarmed populous is at the mercy of an armed criminal one. Society becomes one of victimhood and it seems like DPS is perfectly happy with that as the status quo.
Because the law does NOT bestow to DPS the authority to disarm citizens carrying black powder pistols, nor does it have the authority to force citizens off public property. The City of Austin tried citing Occupy Austin members after ordering them to leave public property and lost a major lawsuit. Citizens have a right to the use of public property as long as they don’t restrict the use of that property to other people. The capitol complex is no different.
This post is not meant to be viewed as an interpretation of law. It is written for purely informational purposes.